In Trainor v. Citibank, Nat. Ass’n, 2014 WL 2574527 (D.Minn. 2014), Judge Magnuson refused to stay a TCPA case based on the Primary Jurisdiction Doctrine.

Citibank seeks a stay of this action to allow the FCC to rule on several pending petitions that will determine whether Citibank’s telephone equipment meets the definition of automatic telephone dialing system (“ATDS”) in the TCPA. The TCPA defines ATDS as “equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers.” 47 U.S.C. § 227(a)(1). The TCPA makes it unlawful to use such a dialing system to call a cell phone number unless the party being called has given his or her “prior express consent” to the call. Id. ¶  Citibank denies that its equipment has the present capacity to generate and dial random or sequential numbers. According to Citibank, its dialing system does not use a random or sequential number generator, but rather draws telephone numbers from a database of Citibank customer information. Plaintiffs contend that Citibank’s dialing system is a predictive dialer that the FCC has found to fall within the definition of the TCPA. If Citibank’s dialing system is an ATDS, Citibank’s calls to Caleb’s phone violated the TCPA. ¶  Whether a dialing system must have the present, as opposed to the theoretical, capacity to randomly or sequentially generate telephone numbers is the subject of six petitions pending before the FCC. According to Citibank, the FCC decision is imminent, although there is no timeline for a decision on this issue. Citibank emphasizes that three decisions have determined that a stay is appropriate in similar cases, pending the FCC’s determination of the ATDS issue. Hurrle v. Real Time Resolutions, Inc., No. 13–5765, 2014 WL 670639, at *1 (W.D.Wash. Feb. 20, 2014); Mendoza v. UnitedHealth Grp. Inc., No. 13–1553, 2014 WL 722031, at *2 (N.D.Cal. Jan. 6, 2014); Glauser v. Twilio, Inc., No. 11–2584, 2012 WL 259426, at *3 (N.D.Cal. Jan. 27, 2012).  ¶  Plaintiffs argue that the FCC has already issued decisions that define ATDS to include a system such as Citibank’s. According to Plaintiffs, the FCC in 2003 applied the ATDS definition to all predictive dialing systems, whether or not those systems also include a random or sequential number generator. See  In re Rules & Regs. Implementing the Tel. Consumer Protection Act of 1991, 18 F.C.C.R. 14014, 14090–93 (July 3, 2003). And Plaintiffs are correct that this FCC ruling discusses, in part, the very situation presented here. The industry contended that predictive dialers did not fall within the statutory definition of ATDS because those dialers do not dial random or sequential numbers, but rather store numbers or receive numbers from a database. Id. at 14090. But the FCC disagreed, finding “that a predictive dialer falls within the meaning and statutory definition of ‘automatic telephone dialing equipment’ and the intent of Congress.” Id. at 14093. The FCC emphasized this determination in 2008: “In this Declaratory Ruling, we affirm that a predictive dialer constitutes an automatic telephone dialing system and is subject to the TCPA’s restrictions on the use of autodialers.” 23 F.C.C.R. 559, 566 (Jan. 4, 2008).  ¶  It may be that the FCC is poised to overturn its prior decisions, but given that this issue has been pending before the FCC for more than four years, when that new decision will issue is anyone’s guess. See  Glauser, 2012 WL 259426, at *2 (staying similar TCPA case pending FCC decision on predictive dialer issue and noting FCC’s Notice of Proposed Rulemaking dated January 22, 2010). An indefinite stay is not in any party’s interest.  ¶  Further, at this stage of the litigation, the Court cannot determine whether Isaac has standing to sue under the TCPA. The TCPA prohibits ATDS calls to a wireless telephone because the party called may be charged for the call. 47 U.S.C. § 227(b)(1)(A)(iii). Isaac has averred that he pays the bill on Caleb’s cell phone. (Compl.¶ 15.) Therefore, he was charged for calls Citibank made to Caleb’s phone. Whether this status is sufficient to confer standing under the TCPA, however, will depend on further factual development.